New Hampshire Supreme Court backs Mack’s Apples in sledding accident lawsuit

By PAULA TRACY, InDepthNH.org

CONCORD — The state Supreme Court has ruled that a Superior Court judge made the correct decision to dismiss the case of a woman who was paralyzed in a January 2022 sledding accident at a Londonderry apple orchard.

“Because access to defendant’s property for recreational purposes was free to the general public, I applied RSA 509:14. “The court rightly granted the defendant’s motion to dismiss,” the court ruled.

The confirmed October 11 order in Caroline Adams v. Moose Hill Orchards LLC d/b/a Mack’s Apples was entered without objection.

However, it noted that Judge Ann Barbara Hantz Marconi attended the oral argument but did not take part in the final vote.

She is on administrative leave for 90 days and her husband, Geno Marconi, is also on leave from his position as director of the state Department of Ports and Harbors. He has been on leave since April and the Pease Development Authority refused to grant him permission.

The Supreme Court issued an opinion on the decision on July 25, but Hantz Marconi had recused himself from cases involving the attorney general since May.

The AG’s office said “no comment” Monday when asked for comment on the matters surrounding the Marconis.

Adams’ state Supreme Court case was heard in April before more than 200 people at Plymouth Regional High School, where students from both that school and nearby Plymouth State University were invited to the Supreme Court’s sessions as part of regular appearances road” to educate the public about their work and hear real cases in which both sides agreed to participate.

“This isn’t a role-playing game. This is an actual case in court,” said Ned Gordon of Bristol, a retired district judge and former state senator, who introduced the case and trial before the five justices took the stage in their robes that day.

He then moderated a subsequent discussion with the students.

Chief Justice Gordon J. MacDonald, Senior Associate Justice James P. Bassett, Judge Anna Barbara Hantz Marconi, Judge Patrick E. Donovan and Judge Melissa B. Countway then took the stage and answered questions following the hearing of the case.

Attorneys Anna Zimmerman and Michaila Oliveira represented the plaintiff and attorney Nick Wright represented the orchard owners.

Adams, a dentist and Hudson resident, was seriously injured while sledding on the orchard property in 2022 and sued the landowner. But Rockingham County Superior Court Judge David Ruoff agreed with the orchard’s motion to dismiss.

Adams was sledding in the apple orchard on January 30, 2022, and although Mack’s does not prohibit the public from sledding on its property or charge for entry, the company operates a seasonal stand on the path to the sledding hill selling hot apple cider, hot chocolate and other goods to sledders that Adams and her husband, Christopher Estrella, wanted to sell to customers.

Their complaint alleged that Mack’s Apples was liable under a theory of negligence – that the sledding hill contained a dangerous and invisible “jump” and that because of the presence of the jump, Mack’s Apples failed to comply with a legal obligation to maintain its property in a safe manner , free from disproportionately dangerous conditions and defects.

Mack’s Apples filed a motion to dismiss under RSA 508:14, I (a New Hampshire statute), which provides:

“An owner, occupier or lessee of real property, including the State or a political subdivision, which permits a person, free of charge, to use the property for recreational purposes or as a spectator of recreational activities, shall not be liable for personal injury or damage to property in the absence of intentional injury or damage .”

After reviewing the complaint and motion to dismiss, Ruoff granted the motion to dismiss citing statute.

The plaintiff argued that the law in Soraghan v does not authorize use of the defendant’s property for recreational purposes, but rather “whether the injured immigrant was on the property for a purpose related to the property owner’s business activities for which the property owner usually charges fees.”

The plaintiff alleged that Mack’s Apples was liable under Soraghan because Mack’s Apples “is not simply a private landowner permitting members of the public to use it.” [its] Land for Recreational Purposes,” but “allows the public to use their land as a means of attracting the public to its property for the primary purpose of their business of selling items to the public at a profit.”

The Supreme Court rejected this argument, holding that “even if a landowner benefits indirectly from the granting of access to his land, recreational immunity continues to apply as long as the public is not charged a fee for access to the land itself.”

Mack’s Apples argued that the Supreme Court’s decision was correct under the law because Mack’s Apples allowed the public access to its land without directly charging a fee for use of the sledding hill.

The Supreme Court ruling addressed the Cranmore Ski Resort case and another case involving Loon Mountain and found that the primary purpose of current state law is to “promote the public recreational use of private property.” To achieve this purpose, a private landowner is entitled to immunity for recreational use if the landowner “allows any person, as a member of the general public, to use (his) land and does so without consideration”, and is different from the case of a ski resort.

Just because they had a farm, any purchase there was voluntary and not required to enter the land for sledding, the Supreme Court ruled.